Copple v. Aigeltinger

[708]

ANGELLOTTI, J.

This is an action for the specific performance of an agreement for the sale of real estate. The lower court first made its findings and entered its judgment in favor of defendants. Later, upon motion of plaintiff for amendments to the conclusions of law and for a judgment based thereon in his favor, the court made an order granting such motion, vacating the prior judgment, and directing a new judgment in plaintiff’s favor, which was accordingly entered. From this order the defendants appeal.

The statute expressly provides for an appeal from such an order. (Code Civ. Proc., sec. 663a.)

The facts of the case are presented in the findings of the court, and are in substance as follows: On the seventeenth day of September, 1910, the defendant E. H. Aigeltinger was the owner of an undivided one-half interest in a tract of land near Hopland, and on that day made, executed, and delivered to one A. H. Pape, acting as agent for the plaintiff, an instrument in writing relative to the purchase of said real estate by plaintiff in the following words:

“San Francisco, September 17, 1910.

“Rec’d. from A. H. Pape as deposit of $10 for William Copple on sale of

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piece of land known as Lowe place at Hopland. Balance of Five hundred and ninety ($590) dollars to be paid on delivery of deed.

“(signed) E. H. Aigeltinger.”

The purchase price of the land named in this instrument was reasonable, and the sum of ten dollars was actually received by said Aigeltinger upon the date thereof. On September 23, 1910, said Aigeltinger requested William Copple, the principal of said Pape and plaintiff herein, to return said writing, and offered to repay to him the ten dollars which he had received thereunder. The instrument was not returned nor the offer of repayment accepted; but on the twenty-eighth day of September, 1910, Aigeltinger, for a valuable and sufficient consideration, conveyed the property to his co-defendants Spencer Beasley and Isaphene Beasley, his wife, who took such conveyance with full knowledge of the execution and terms of said instrument. . On October 25, 1910, the plaintiff notified the defendant Aigeltinger that he was ready, able, and willing to take said property under the terms of